“Well, young man,” Donahue said warmly, “here we are.” He smiled and shook Watson’s hand. “Mr. Harper and I are still willing to play dead and let your client off with natural life.”
“When my client recovers from brain surgery at the hands of government doctors, I’ll ask him if he’ll go for it,” said Watson.
“Yes,” said Donahue, “I heard they were going to try to fix the fellow’s brain. Take out the hate glands, maybe?” He winked at Harper.
“Too bad about Judge Willard,” said Harper.
“Too bad?” asked Watson.
Donahue nodded jovially. “Too bad for your client. He’s the toughest district court judge in Arkansas. Positively loathes criminals.”
“You mean he hates criminals?” asked Watson. “If he hates anybody he better watch himself around you guys, huh? Besides, he may hate criminals,” said Watson, “but he wrote an Arkansas Bar Journal article called “Hate Crime Hysteria” back in the nineties, just after they passed the federal law against church burnings. I’ll send you a copy if you’d like.”
Donahue glared in Harper’s direction. “I’m sure we found that one. It’s his sentencing background that would give me the chills if I were you.”
“I suppose it would if we were going to a sentencing hearing,” said Watson.
Donahue squinted at him and elbowed Harper. “Very tart, this one. A little too flip. We’ll see if Judge Willard takes some of the tang out of your sass, boy.” He extended his hand. “Good luck, young man.”
Watson shook Donahue’s hand and then Harper’s. And thought about going to the rest room with dry heaves.
He felt a light touch on his right elbow just as the clerk said, “All rise.” He strained to see who it was in the corner of his eye, but no one was there. Another touch, from below? A child? He looked down and saw Myrna Schweich standing behind him in full corporate dress. She tugged his sleeve until his ear was at her level.
“Your dick is so big it is a fucking war club,” she whispered. “Donahue is a lazy blowhard. He’s a short guy with little hands. You know what that means. You? Look at you. Six two. Big hands. Manly man. You know ten times more than he does about the law of this case. The man does not read. Pull out that big cock of yours and beat him to death with it,” she hissed.
Her exhortations had the intended effect. Maybe she was right. Where would a guy like Donahue find the time to read a brief, let alone cases cited in a brief?
“United States Court of Appeals for the Eighth Circuit is in session. The first case on this morning’s docket is United States versus Whitlow. The appellant has reserved five minutes for rebuttal.”
They would be arguing legal theory in a vacuum, hermetically sealed against any factual considerations. When Judge Horner asked him about the First Amendment and the federal penalty enhancement statute, Watson could not say, “Guess what, Judge? Did you know that Mary Whitlow is in this militia business up to her eyeballs?” He couldn’t mention the missing briefcase, the VTD and its incriminating statements, the venereal disease, Alpha and Beta. Those were all trial court matters, messy factual discrepancies to be worked out below. Up here, in the chambers of pure legal reason, the only questions were legal ones: Did Judge Stang correctly rule that the federal hate crimes statute violates the First Amendment? Did Judge Stang correctly rule that evidence of tattoos, racial jokes, racist reading materials, arguably racist behaviors such as Whitlow’s display of a Confederate flag, were inadmissible to prove racial animus because the prosecution had failed to link those activities to the murder?
“United States versus Whitlow,” called the clerk. And Judge Willard looked up from his notes.
“Good morning, Mr. Donahue,” said Judge Horner, who sat in the middle, flanked by Judge Mallory on his right and Judge Willard on his left.
“Good morning, Judge,” said Donahue, swaggering to his place at the podium.
“And is it Mr. Watson?” said Horner, smiling indulgently at Watson. “For the appellee, James Whitlow, is that right?”
“Yes, Your Honor,” said Watson. Would it were otherwise! I’ll go first if the court wishes! As always, the complaining party went first, which meant that Watson would have to sit and watch a professional orator with twenty-five years of lawyering under his belt perform before taking his own turn at the podium.
“May it please the court,” Donahue began, “I represent the people of the United States of America. We are seeking to enforce a penalty enhancement statute which Congress passed some time ago to provide additional penalties for crimes motivated by particular types of hatred. Despite the somewhat hysterical contentions set forth in the defendant’s brief, this statute does not punish thought, or ideas, or beliefs. It punishes criminal conduct. The defendant, James Whitlow, is free to think any thoughts he pleases. He is free to be a bigot and think bigoted thoughts. But when he expresses his thoughts with conduct, namely, the murder of a disabled citizen of color, his conduct and his motivation for that conduct may be punished.”
“Mr. Donahue,” said Judge Horner, “I’m looking at the title of this statute as it is set forth in the United States Code, where it says, ‘Hate Crime and Vulnerable Victims.’ Are you telling this court that Congress was not targeting bigots and their proclivity for hatred when it passed this statute?”
“The statute is aimed at discriminatory conduct,” said Donahue. “If there is no underlying criminal conduct, then no penalty applies. The statute punishes perpetrators who intentionally select victims because of certain protected characteristics. It does not target bigotry or racism or any other mind-set or idea.”
“Because if it did it would run afoul of the First Amendment, wouldn’t it?” asked Judge Willard.
“An argument could be made to that effect,” said Donahue.
“And you’re not taking off after bigots, are you, Mr. Donahue?” chuckled Judge Willard.
“Bigoted criminal conduct,” said Donahue, “as set forth in this statute, which was very carefully crafted to accommodate the First Amendment.”
“I see,” said Judge Willard. “That must have been your evil twin in the Post-Dispatch railing against bigotry last week.”
Soft laughter from the lawyers awaiting their turns, which Donahue quelled with a loud voice. “I hope I am entitled to publicly express my own antipathies for bigotry and still discuss the constitutionality of a statute aimed exclusively at discriminatory conduct. I find bigotry personally abhorrent,” said Donahue, “but I am also aware that it is protected by the First Amendment. Our Supreme Court has told us time and again that the First Amendment does not protect violence or criminal conduct, even when the defendant claims to be expressing himself by using same. This statute does not target bigotry in the air, as it were, it targets bigoted conduct.”
“And only bigoted conduct?” asked Judge Willard. “It’s not overbroad?”
“I don’t believe so, Judge.”
“Have you seen this program—What’s it called?” asked the judge. “ ‘The Fugitive’? And they made it into a movie, didn’t they? This Fugitive fellow is constantly looking for a one-armed man who supposedly killed his wife. Do I have it right, Mr. Donahue?”
“I think so, Judge, but I fail to see—”
“I’m wondering what would happen if our Fugitive caught a one-armed man—the wrong one-armed man, as it turns out—and assaulted him. His victim has only one arm, so he’s disabled under the terms of this statute, is he not?”
“Yes,” said Donahue, “but—”
“And, of course, our Fugitive—what’s the wording of the statute?” Judge Willard picked up a piece of paper and read from it. “Our Fugitive ‘intentionally selected his victim because of the victim’s disability,’ isn’t that right? But this selection has nothing to do with discriminatory conduct, does it? The Fugitive is simply trying to find the man who killed his wife, right? Yet under this statute he would receive extra penalties because of this intentional selection.”
�
��In the confines of your hypothetical,” said Donahue, “he would.”
Judge Mallory interrupted and tried to ride to Donahue’s rescue. “Well, it’s not just a hypothetical, is it, Mr. Donahue? The case cited by the defense, Aishman versus California, in which the defendant and his friends went looking for Mexicans, because his wife told him a group of Mexicans had raped her? Were these men looking for rapists or Mexicans?”
“In that particular case,” said Donahue, “I’m not … I believe they were …”
He hasn’t read Aishman, Watson marveled. Incredible! Judge Mallory was pitching him one underhanded across the plate. The answer would be “both.” He was looking for Mexican rapists. He can hate rapists all he wants, but if at least part of the reason he selected his victims was because of their nationality, he runs afoul of the statute. When the husband in Aishman came home from beating Mexicans with a baseball bat, he told his friends he had been “hitting home runs with Mexicans.” Donahue wasn’t going to make any hay with that line, because he hadn’t read the case. Myrna was right!
“I concede that in some very narrow circumstances,” said Donahue, “the statute may reach conduct not motivated by discrimination, but I would weigh those unusual circumstances against the grave problems the federal government faces in trying to stem the rising tide of bias-motivated violence and property destruction. These arguments were heard by the United States Supreme Court in Wisconsin versus Mitchell and the Court ruled that the Wisconsin statute was constitutional. Wisconsin was entitled to administer greater penalties for an assault in which the attacker intentionally selected a white victim.”
“That seems to be the case in so many of these high-profile cases,” inserted Judge Mallory. “Is there a danger these statutes will be used disproportionately against minorities who are accused of attacking what they perceive to be their social oppressors? Seems to me it’s the prosecutors who decide what is and isn’t a hate crime. In the Wisconsin case, which came up so often in the briefs, it’s a black teenager who intentionally selected a white person.”
“Proof positive that the statute is content neutral,” said Donahue. “Every argument set forth in the defendant’s brief was made in the Mitchell case, and the United States Supreme Court rejected every one of them. This court is obliged to do the same under the doctrine of stare decisis.”
“Don’t overstate your case, Counselor,” said Judge Willard. “That is not quite true. Some of the defendant’s arguments were made in Mitchell, and some of the defendant’s arguments are new arguments, because we have a new and different statute, isn’t that right?”
“Not in any material respect, Judge,” said Donahue quickly. “The sentencing commission looked at the Wisconsin statute and the Supreme Court’s opinion in Mitchell very closely before drafting this statute, and this court—”
“And because we have a different statute,” interrupted Willard acidly, “then we have a different case, and this bloviating reference of yours to stare decisis belongs in a theater, not in this courtroom. The Wisconsin statute was constitutional because it was discretionary, Mr. Donahue.”
“I’m sorry, Your Honor? I’ve lost the court’s train of …”
“The Wisconsin judge could administer the penalty enhancement or not, depending on the circumstances. Right? The statute simply expanded the range of available penalties from a four-year maximum sentence to seven, eight, or nine years, right? But here, this statute requires an enhancement of six levels under the sentencing guidelines if the perpetrator intentionally selected his or her victim because of a protected characteristic.”
“Yes, but …”
“And our Fugitive is going to get a second, separate penalty for intentionally selecting a disabled person, even though he had no intention to discriminate against a disabled person per se—he simply wants to kill the man who murdered his wife, conduct which is already punishable under the homicide statutes. Nobody wants to set him free. But we don’t want to give him extra punishments for something he didn’t do. A federal sentencing judge bound by this statute is powerless to withhold the enhancement, even if it is clear that no discriminatory conduct has occurred.”
“That’s true, Your Honor,” said Donahue, “but again …”
“And we have exceeded the bounds of the Mitchell case in other respects as well, have we not? You’ll recall that in Mitchell, the defense made the same argument that’s being made here, namely, that there is a very real possibility that a defendant will be punished for his beliefs or for expressive conduct which may have occurred years before the crime. And the Supreme Court said”—the judge rustled papers and retrieved a document—“ ‘We are left then with the prospect of a citizen suppressing his bigoted beliefs for fear that evidence of such beliefs will be introduced against him at trial if he commits a more serious offense against person or property. This is too speculative a hypothesis to support Mitchell’s overbreadth claim.’ ”
Judge Willard looked up over his reading glasses at Donahue. “But it’s no longer speculative, is it, Mr. Donahue?” asked the judge. “Because in this case the government wants to introduce evidence that Mr. Whitlow displayed a Confederate flag once upon a time, or that he told racist jokes, or worried about his property values, or painted a swastika once as a college prank. Has the government attempted to tie any of these events to the crime being charged here?”
“We were prepared to do just that at trial,” said Donahue.
“But you didn’t get to trial, did you?” said Judge Willard, “because you couldn’t satisfy Judge Stang’s concerns about how you were going to tie all of this character evidence to the charged crime. It’s a question of proximity, isn’t it? How proximate is the conduct to the thought?”
“We had evidence that this defendant was spewing racial invective in a crowded bar just days before the crime was committed,” said Donahue.
“Did this evidence contain any indication that the defendant was going to attack any member of a protected group? Did he threaten to go out and kill a black person, or did he tell somebody he would really like to shoot a deaf person?”
“Not in so many words, Your Honor, but when taken as a whole, his speech on any number of occasions is rife with violent antipathies against groups protected by this statute. All of this evidence taken together is probative and admissible on the question of his real motive in committing this heinous crime. And I would add, Your Honor, that under the terms of the statute as it has been interpreted by the courts, it is not necessary for the government to prove that the defendant, James Whitlow, selected his victim solely, or exclusively, or even predominately because of the victim’s race or disability, only that his prohibited animus played some part in his motivation for the crime.”
“Now I feel better,” snapped Judge Willard. “If one percent of our defendant’s motive for intentionally selecting his victim was because of the victim’s race and disability and ninety-nine percent of his motive was because of his wife’s infidelity, then we’ll double or triple his sentence to make sure that no stone goes unturned in obliterating even minuscule amounts of bigotry, is that it?”
“With all due respect,” said Donahue, “the court’s hypotheticals are both erudite and creative, but my office is charged with applying statutes to real-world crimes.”
Watson held his breath and watched Donahue taking on more water. Judge Willard was an archangel come down from heaven. Watson’s ally. Stang’s alter ego. He was waiting for Judge Willard to wink at him, or give him a nod. What a pal! The good judge was arguing Watson’s brief for him. How was it these old men seemed so effortlessly insightful?
“Mr. Donahue,” said Judge Mallory, obviously trying to give Donahue some relief from the onslaught of Judge Willard, “are there any limits to the government’s powers under these statutes? I mean, we have extra penalties for intentional selection of victims based upon their perceived race, color, religion, national origin, ethnicity, gender, disability, sexual orientation, and views on
the issue of reproductive rights. Suppose we add views on the issue of hazards presented by the ozone layer, or views on the draft in times of heightened national security, or views on whether the earth is flat? Would adding those categories render the statute constitutionally infirm?”
“The categories currently contained in the federal hate crimes statute all further legitimate state interests,” said Donahue. “I think the Supreme Court’s opinion in Dawson would prohibit extra punishment being given for abstract beliefs that are not related causally to the charged crime. For instance, if we tried to make a statute providing that all drunk drivers will have their sentences doubled if it can be shown that they are also racists, that would present constitutional problems, but that is not the case here.”
“OK,” said Judge Mallory, and went on to make his point for him, lest he drift back into the line of Willard’s fire, “so it isn’t the goodness or badness of the idea that we are talking about, it’s whether attacks on the basis of that idea are a particular problem? As in the case of the views on reproductive rights, a category Congress added to the statute in 1999? We don’t care if criminals are for or against abortion, but we do care and we give them extra penalties if they attack someone or destroy someone’s property because of their views on this politically volatile subject, is that right?”
She was feeding him baby food with a rubber spoon.
“Absolutely correct, Judge Mallory,” said Donahue. “The question is whether violence motivated by hatred of the particular categories presents a significant law enforcement problem in the traditional criminal context.”
“Your time is almost up, Mr. Donahue,” said Judge Willard. “One more time: How do you answer the arguments in the defendant’s brief that this statute is not governed by the Supreme Court’s analysis in Wisconsin versus Mitchell because it is not a discretionary sentencing statute but a call for separate, required, extra penalties, no matter what the circumstances of the case? The defendant’s brief laid it out for you very well. But the government’s reply brief reads like a law review article on the sentencing guidelines without ever engaging the ultimate issue. Is this statute discretionary? And if not, does that present us with a problem of overbreadth for our Fugitive and his quest for the one-armed man?”
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